State v. HaymondState v. Haymond
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 7, 2009
APPEARANCES:
For Plaintiff-Appellee
CANTON CITY PROSECUTOR
Canton City Hall
218 Cleveland Ave. S.W, 7th Floor
Canton, OH 44702
For Defendant-Appellant
DON E. CAPLEA
500 Courtyard Centre Bldg.
116 Cleveland Ave. N.W.
Canton, OH 44702
Gwin, J.,
{¶1} Defendant-appellant James M. Haymon appeals from the judgment of the Canton Municipal Court overruling his motion to return property. Plaintiff-appellee is the State of Ohio1.
STATEMENT OF THE FACTS AND CASE
{¶2} On or about March 2, 2008, appellant was charged In The Canton Municipal Court with two counts of Domestic Violence, misdemeanors of the first degree in violation of
{¶3} On April 11, 2008, the prosecutor dismissed the two counts of domestic violence. Appellant then entered pleas of no contest to the remaining charges. The trial court found appellant guilty, and sentenced him to one hundred eighty (180) days in jail and court costs, with all but one day suspended and the Court additionally ordered the weapon to remain at the Sheriff‘s Department.
{¶5} On February 13, 2009, appellant filed a Request for the Return of Property, to wit, a Military Beretta Pistol that had belonged to his father, who was a veteran of World War II and, which was intended to be handed down to one of the family members. The state did not oppose the motion.
{¶6} On February 25, 2009, the trial court conducted a hearing upon appellant‘s motion. Appellant and his brother each made statements to the court. Appellant explained that he had felt intimidated by the two males who had appeared at his home on the night in question. (T. at 8). He further explained that he went inside his house while the two individuals remained outside. He retrieved the unloaded handgun from the upstairs bedroom and told his daughter to tell the men to leave. (Id.). Appellant immediately realized his mistake and put the handgun away. (Id.). Appellant never took the handgun outside of the bedroom. Appellant thereafter tried to assist the men to dislodge their truck that had become stuck in the snow in appellant‘s driveway. (Id.).
{¶7} Appellant‘s brother told the court that the handgun had been handed down from his father, a World War II veteran. (Id. at 10-11). He further informed the court that he would take custody of the firearm in the event the court decided that it should not be returned to appellant. (Id.).
{¶8} The trial court overruled appellant‘s motion by Judgment Entry filed March 10, 2009. In denying the motion the court stated, “As the defendant pleaded to the
{¶9} It is from the trial court‘s March 10, 2009 Judgment Entry denying his motion to return property that appellant has timely appealed raising as his sole assignment of error:
{¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO RETURN [SIC.] ORDER THE RETURN OF A MILITARY BERETTA PISTOL WHICH WAS ORDERED TO REMAIN AT THE SHERIFF‘S DEPARTMENT.”
I.
{¶11} In his sole assignment of error appellant argues that the trial court abused its discretion by not returning the firearm to him or his brother.
{¶12} Initially, we note that in Ohio, forfeitures are typically not favored in law or equity. State v. Johns (1993), 90 Ohio App.3d 456, 459, 629 N.E.2d 1069, citing State v. Lilliock (1982), 70 Ohio St.2d 23, 25, 24 O.O.3d 64, 434 N.E.2d 723. “Whenever possible, such statutes must be construed as to avoid a forfeiture of property.” Lilliock, 70 Ohio St.2d at 26, 24 O.O.3d 64, 434 N.E.2d 723. The Supreme Court of Ohio has cautioned that forfeiture may not be ordered, “unless the expression of the law is clear and the intent of the legislature manifest.” Id.; see also Dayton v. Boddie (1984), 19 Ohio App.3d 210, 19 OBR 354, 484 N.E.2d 171. A forfeiture action, while instituted as a criminal penalty, is a civil proceeding. State v. Roberts (1995), 102 Ohio App.3d 514, 518, 657 N.E.2d 547, citing State v. Casalicchio (1991), 58 Ohio St.3d 178, 181, 569 N.E.2d 916. Accordingly, due process requires that proceedings seeking a disposition of
{¶13} This Court would note that former
{¶14}
{¶15} “(A) The following property is subject to forfeiture to the state or a political subdivision under either the criminal or delinquency process in section
{¶16} “(1) Contraband involved in an offense;
{¶17} “* * * ;
{¶18} “(3) An instrumentality that is used in or intended to be used in the commission or facilitation of any of the following offenses when the use or intended use, consistent with division (B) of this section, is sufficient to warrant forfeiture under this chapter:
{¶19} “* * *;
{¶20} “(b) A misdemeanor, when forfeiture is specifically authorized by a section of the Revised Code or by a municipal ordinance that creates the offense or sets forth its penalties;
{¶22} “(B) In determining whether an alleged instrumentality was used in or was intended to be used in the commission or facilitation of an offense or an attempt, complicity, or conspiracy to commit an offense in a manner sufficient to warrant its forfeiture, the trier of fact shall consider the following factors the trier of fact determines are relevant:
{¶23} “(1) Whether the offense could not have been committed or attempted but for the presence of the instrumentality;
{¶24} “(2) Whether the primary purpose in using the instrumentality was to commit or attempt to commit the offense;
{¶25} “(3) The extent to which the instrumentality furthered the commission of, or attempt to commit, the offense.“(Emphasis added).
{¶26}
{¶27} “(A) (1) Property described in division (A) of section
{¶28} “(a) The nature and extent of the alleged offender‘s or delinquent child‘s interest in the property;
{¶29} “(b) A description of the property;
{¶31} “(2) If any property is not reasonably foreseen to be subject to forfeiture at the time of filing the indictment, information, or complaint, the trier of fact still may return a verdict of forfeiture concerning that property in the hearing described in division (B) of this section if the prosecutor, upon discovering the property to be subject to forfeiture, gave prompt notice of this fact to the alleged offender or delinquent child under
{¶32} “(3) For good cause shown, the court may consider issues of the guilt of the alleged offender or the delinquency of the alleged delinquent child separate from whether property specified as subject to forfeiture should be forfeited.
{¶33} “(B) If a person pleads guilty to or is convicted of an offense or is adjudicated a delinquent child for committing a delinquent act and the complaint, indictment, or information charging the offense or act contains a specification covering property subject to forfeiture under section
{¶35} In the case at bar, the complaint charging the offenses contained no specification covering property subject to forfeiture under section
{¶36} For the foregoing reasons appellant‘s first assignment of error is granted, and the State is ordered to return the above listed property to appellant.
By Gwin, J.,
Farmer, P.J., and
Wise, J., concur
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HON. W. SCOTT GWIN
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HON. SHEILA G. FARMER
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HON. JOHN W. WISE
WSG:clw 1201
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Canton Municipal Court is reversed, and the case is remanded for further proceedings consistent with this opinion. Costs to appellee.
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HON. W. SCOTT GWIN
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HON. SHEILA G. FARMER
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HON. JOHN W. WISE